Trustee David Lohmeier said he ‘probably would have behaved differently a couple months ago had he known the history? of the Comcast quarrel.
‘As embarrassing as it is for everybody to pick up the paper and learn a lot more about a topic that we’re in legal issues over, it was
enlightening for me,” Lohmeier said at the Nov. 3 Township Board meeting.
“Quite frankly, the Clarkston News caused me to ask questions that should have maybe been asked to begin with,? he said.
Independence Township officials told Attorney Kristin Kolb, Secrest Wardle, to file a complaint with the Michigan Public Service Commission (MPSC) in order to try and resolve the ongoing cable fee fiasco.
‘You do need to move ahead, the board has spoken before on this subject,? said Supervisor Dave Wagner at the Nov. 3 meeting. ‘You need to go this next step immediately and let’s get this next thing over.?
Kolb said the first step required under state law is to submit a notice of dispute between the provider and franchising entity, the township.
Trustee Larry Rosso asked if ‘there had been any similar cases of this nature.?
‘No, for two reasons,? Kolb said. “One, because PA 4, which codified the dispute resolution, was passed earlier this year, and because the township did not have an existing franchise agreement when PA 480 was signed into law in 2007.
‘Under the statute PA 480 or the uniform Franchise Act, the township could not receive PEG fees until we did the Community Needs Assessment, which was the process the township went through last year,? she said.
‘We did what we had to do in having the assessment,? Rosso said. ‘So I think we should be on pretty good legal grounds.?
Trustee Neil Wallace asked when the prior franchise, which dates back to 1983 expired. Kolb said she thought it was 2003, but ‘wasn’t sure.?
According to the original contract, it was for 15 years and expired in 1998.
Wallace said it seemed that Comcast was challenging the townships ability ‘in the past and going forward to collect PEG Fees and there was something left out of an application or a form.?
Kolb explained the process for a franchise was initiated when Comcast submitted to the township the state mandated Uniform Franchise Agreement.
‘What the township received in the mail was a document signed by Comcast, but it was incomplete,? she said. ‘It was incomplete for a number of reasons under the statute. Importantly it had blanks where the amounts for the Franchise Fees and the PEG fees should be filled in.?
Wallace asked if they (Comcast) had a sound legal or factual basis for submitting it with the blanks not filled in. Kolb said there has been ‘some dispute.?
‘Subsequent to that time the MPSC directed that the communities were to fill in those numbers,? she said. ‘At the time the township received the uniform franchise, there had been no dictate from the MPSC that stated that.?
However, the Franchise agreement specifically states in section VI (the Franchise fee section) ‘percentage amount to be inserted by Franchising Entity…? In Section VIII A3 (The peg fee section) ‘If there is no Franchise Agreement, a percentage of gross revenues as established by the Franchising authority and determined by a Franchising Entity…?
Lohmeier pointed out the copies of the franchising agreement the board received were both blank and asked if there was a copy of a filled in one. Kolb said she didn’t have one in her files, ‘but the township would have a copy of what was sent.?
However, Kolb was asked in a previous conversation with the Clarkston News if she had those documents, which she resplied she did, but declined to give them citing work product protection.
When Clerk Shelagh VanderVeen was asked by the Clarkston News if she had a signed contract, she said she did, but copies would only be available by submitting a Freedom of Information Act (FOIA) request, which would mean paying 50 cents a page. She did allow the newspaper to look at the document for free.
The copy provided shows the township had filled the form out incorrectly in subsection VIII (PEG fee section.)
When questioned further by the Clarkston News concerning statements made at the Board meeting Kolb declined to comment.
‘Given that Independence Township has filed legal proceedings in an attempt to resolve its dispute with Comcast, further comment is not appropriate at this time,? she wrote in an e-mail. ‘The township complied with the requirements of PA 480 in responding to Comcast’s submission of the Uniform Video Service Local Franchise agreement in 2007.?
“The current dispute focuses on the fee that Comcast should pay to the township for the support of public, education and government (PEG) access,? she said.
Lohmeier said he was ‘encouraged by the mediation process,? but asked if it would be possible to sit and talk the dispute out with Comcast, prior to going ‘another year and half fighting.?
‘To the Clarkston News point, I think we have lost money on this,? he said. ‘I think we have fees we could have been collecting if we would have resolved this sooner.?